With more and more citizen-soldiers being called to long tours of duty, being a member of the reserves or the National Guard no longer seems like a part-time position. And that may cause problems for employers whose critical employees disappear for months on end.
Inconvenient as it may be, resist the temptation to mention military service in, at bonus time or when considering service members for promotions or raises. Such comments might be viewed as illegal discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Using military service as even a small motivating factor in employment is illegal under the USERRA.
Best approach: Consciously ignore military service. Instruct everyone—never complain about the service member’s absence, no matter how difficult it may be to get along without him or her.
Recent case: Samuel Tranter, a laborer for Crescent Township, was a long-time member of the Pennsylvania National Guard. He also had problems getting along with a co-worker.
The township decided to eliminate a vacant foreman position, for which Tranter was qualified. But instead of promoting him, the township created a new position and hired an outsider. Tranter sued, alleging he had been passed over because of his military service.
Officials testified that wasn’t so. They said they were concerned that Tranter and the co-worker would not be able to put aside their animosities if one was promoted to supervise the other.
The court threw out Tranter’s case. He presented no evidence that military service was a motivating factor in the township’s decision. Although those who hired the outsider knew about Tranter’s service, they never discussed it among themselves. Nor were there any other comments made in the workplace. All Tranter could point to was a question posed 10 years prior from a commissioner about how much pay reservists were eligible to receive during active duty. (Tranter v. Crescent Township, No. 2:06-CV-355, WD PA, 2007)
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